GANGADHARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE aphorism of Hahnemann, 'similia similibus curantur' appears to have appreciable appeal among the people of Kerala. Small doses and large dilution, one drug at a time, and judging of efficacy of the drug only on humans, may be some such attractions. THE clamour for the establishment of a Homoeopathic dispensary and the dispute about the location, have resulted even in writ litigations. Many of the Homoeopaths are already in court, seeking relief against what they feel a continuing grievance. (Vide O. P. Nos. 3815/86, 3928/86, 3981/86 etc.) This writ petition too projects a facet of such grievance.

(2.) IN essence, the complaint is against the Kerala legislature. Almost a quarter of a century ago, the then Travancore-Cochin state passed an enactment, Travancore-Cochin Medical Practitioners Act, 1953 which inter alia provided for the regulation and registration of practitioners engaged in the practice of modern medicine, Homoeopathic Medicine or INdigenous medicine. The Act was replacing the earlier one, the Travancore Medical practitioners Act, 1119 which was in force in the former Travancore-Cochin area. The attractive provision of the Travancore-Cochin enactment was S. 23 which enabled unqualified practitioners who bad already been in the field for a period of five years prior to 1-4-1953 to be eligible for registration. The Act was, however, territorially limited in its application to the Travancore-Cochin state. For reasons unknown, and which do not directly concern the Court in these proceedings, the Act had not been extended to the Malabar area. This obviously had resulted in a differential treatment to the unqualified homoeopaths of the Malabar area. The situation stagnated for them for about two decades. The Kerala Legislature then passed the Kerala Medical Practitioners bill, 1972. It did not, however, become law. The President did not give his assent to the Bill. Some modifications were suggested. Soon after the return of the Bill, it got lapsed.

(3.) IT is the Legislature that has necessarily to take stock of the relevant factors, and apportion priorities for the topics and aspects of legislation. A fairly long list of Ordinances still awaiting legislative treatment, perhaps indicates the constraints of time and of other factors in legislative business. Those in whom the administration has been vested by the democratic process, have the authority and the duty to listen to matters crying for their speedy action. When the Earl of Selborne in his book 'state and citizen', observed that the House of Commons has more sense than any one in it, he was only emphasising the greatness of the collective wisdom of legislature. In areas where the executive or legislative limbs of the Government have to act, the Court shall refrain from encroachment. That well-known principle has been recently reiterated by the Supreme Court in State of H. P. . Student's parent, Medical College, Simla, AIR 1985 SC 910 at page 913. The Court observed: "it is entirely a matter for the executive branch of the Government to decide whether or not to introduce any particular legislation. Of course, any member of the legislature can also introduce legislation but the Court certainly cannot mandate the executive or any member of the legislature to initiate legislation, howsoever necessary or desirable the Court may consider it to be. That is not a matter which is within the sphere of the functions and duties allocated to the judiciary under the constitution. "